COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69920 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : : OPINION WALLACE WIGLEY : : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: FEBRUARY 6, 1997 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, Case No. CR-321081. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor Dominic Del Balso Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-appellant: Michael Troy Watson, Esq. Watson & Watson, Attorneys 1367 East Sixth Street, #400 Cleveland, Ohio 44114 SWEENEY, JAMES D., C.J.: Defendant-appellant Wallace Wigley, a.k.a. Phillip Clemmons (date of birth January 10, 1950), appeals from his jury trial 1 conviction of one count of Felonious Assault in violation of R.C. 2 2903.11 , with aggravated felony and violence specifications. For the reasons adduced below, we affirm. A review of the record on appeal indicates that the defendant and the victim, Ms. Doris Williams, had been romantically involved with each other for a period of six months in the past without the benefit of marriage, resulting in the birth of their daughter, Sadie. After some time apart, the defendant and the victim renewed their relationship in 1992 at which time they lived together. In February of 1995, following an argument, the relationship ended again and the two moved to separate addresses. Subsequent to the February, 1995 break-up, the two would have limited contact with one another, with the victim borrowing money from the defendant and the defendant periodically delivering mail to the victim's new address. On March 2, 1995, the defendant came to the victim's home to recover some money he had loaned the victim, finding the victim with another man. The victim repaid that money and the defendant 1 The act which constitutes this offense was the defendant striking the female victim with his fists and with a metal chain during an altercation at a late-night bar. 2 Defendant was acquitted of one count each of Rape (R.C. 2907.02) and Kidnapping (R.C. 2905.01). - 3 - left without altercation. Later that evening, the victim went to a local bar. Shortly after the victim arrived at the bar, the defendant also arrived. According to the victim and Mr. James Mays, an employee of the bar who observed the altercation, the defendant approached the victim and struck her repeatedly with his fists, then, when she had collapsed to the floor, struck her with a chain across her back. The defendant then dragged the victim from 3 the bar and drove her to the defendant's home. Upon her release from the defendant, the victim returned to her home and then went to the hospital where she was treated for her injuries and interviewed by the police. Based on this interview, the police arrested the defendant, finding the chain used to beat the victim in the defendant's car. Three assignments of error are presented for review. I THAT THE TRIAL COURT ERRED IN COMPELLING THIS DEFENDANT TO PROCEED ON HIS OWN BEHALF AT TRIAL. DEFENDANT REPRESENTED HIMSELF AS A DESPERATE LAST RESORT, AND AS A RESULT, HAD INEFFECTIVE ASSISTANCE OF COUNSEL. The record on appeal indicates that defendant had various appointed or retained counsel represent him prior to the commencement of the trial proceedings. These counsel, which can be determined through the court filings and orders over an eighteen month period preceding the trial, are the following: (1) Mark D. 3 It was after having arrived at the defendant's home that the defendant allegedly raped the victim. - 4 - McGraw [retained]; (2) Warren McClellan [assigned public defender]; (3) Stanley E. Tolliver, Sr. [retained]; (4) Ramie Resnick [assigned]; (5) Edward Wade [assigned]; (6) Charles Lazzaro; and 4 (7) Kathy Moore [assigned public defender]. The defendant determined that these attorneys were not to his liking and refused their services, did not cooperate with them and ultimately dismissed them as counsel because they were not to his satisfaction while at the same time professing that he desired to have the case heard as soon as possible. See R. 9. The court advised the defendant at the time of Mr. Wade's appointment as counsel on July 19, 1995, that no further assigned counsels would be permitted to be substituted and that the defendant would be forced to represent himself at the upcoming trial, with the aid of an attorney standing at his side, should defendant dismiss his most recently assigned counsel and not come forth with retained counsel by the time of trial (August 28, 1995). Despite this admonition, defendant then dismissed Mr. Wade and retained Mr. Lazzaro for a brief period of time until Mr. Lazzaro was forced to withdraw due to his being disbarred from the practice of law, whereupon the court continued the August trial date to October of 1996 so as to provide the defendant an opportunity to retain counsel. In the interim, the court assigned Ms. Moore to the case to represent the defendant. On the day of trial, October 19, 1996, attorney Ken Mullin of the 4 It was indicated by the defendant that attorney Thomas Shaughnessy represented him at the bind-over hearing. See R. 34- 35. - 5 - public defender's office (who is at least the eighth attorney associated with this defendant in this case since the arraignment) was assigned to be advisory counsel to the defendant because the defendant desired to represent himself at trial. See generally R. 64-66, 76-79. In a colloquy with the court, the defendant adamantly refused the services of any attorney that he did not pick for himself. The court proceeded with the trial with Mr. Mullin acting as advisory counsel to the defendant. The defendant proceeded to voir dire the prospective jury panel and did cross- examine the first of the State's witnesses during the first day of the trial proceedings. Prior to the start of the second day of the trial proceedings, attorney Michael Troy Watson (presently representing the appellant in this appeal) was retained and took over the representation of the defendant at the trial. In this assignment, appellant argues that: (1) the trial court deprived him of his right to representation at the start of the trial by not providing him with counsel; (2) the defendant's pro se representation on the first day of trial was ineffective assistance of counsel which prejudiced the defendant; and, (3) he was prejudiced on the first day of the trial proceedings when he appeared in court, with the jury present, attired in the orange colored jumpsuit provided him by the county jail. As to the first of appellant's arguments, we must conclude that the court did not deprive him of his right to counsel on the first day of the trial proceedings. The record clearly indicates - 6 - that at the time of the trial the court had assigned counsel to represent the defendant, but that defendant refused the participation of his assigned counsel, Ms. Moore. In fact, during the extensive colloquy between the defendant and the court at which time the court attempted to ascertain whether the defendant's waiver of his right to counsel was knowing, voluntary, and intelligent, see State v. Gibson (1976), 45 Ohio St.2d 366, defendant repeatedly asserted to the trial court that he did not want any assigned counsel because he was not indigent and had not selected the proposed counsel. See R. 70, 77-79. Having refused the provided counsel of his own accord, defendant waived his right to representation. As to the second argument presented in this assignment, a defendant who has elected to represent himself pro se at trial cannot invoke ineffective assistance of counsel as error. Such error in his representation is invited and cannot be raised on appeal. State v. Kneip (1993), 87 Ohio App.3d 342. As to the third argument presented in this assignment, we note that a trial court cannot compel a criminal defendant to appear at trial in identifiable prison garb. Estelle v. Williams (1976), 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126. However, the Estelle court recognized that a defendant may choose to wear prison attire or there may be circumstances which negate that level of compulsion necessary to establish a violation of the defendant's right to due process. In the case sub judice, the record indicates that on the - 7 - morning of the first day of the trial proceedings the trial court spoke with the defendant: THE COURT: As has been indicated to you by prior counsel, you have the opportunity to appear in this court dressed in street clothes. It's my understanding that you have, in fact, sent your street clothes home; is that correct? THE DEFENDANT: Yes. R. 66-67. Additionally, before the commencement of voir dire, the court informed the defendant that the court would instruct the jury with reference to the jailhouse attire that no inference of guilt should be attached for the simple reason that defendant had been confined to county jail and could not make bond. R. 81-82. As promised, the court did give such an instruction to the jury. R. 90-91. Based on the facts before us, the defendant has not demonstrated that he was compelled by the court to appear at trial in prison garb. He had the opportunity to appear in street clothes, but voluntarily frustrated his ability to do so in a vain attempt to sabotage the commencement of any trial proceedings at the scheduled time for trial. The first assignment of error is overruled. II THAT THE DECISION OF THE JURY IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE, INCLUDING THAT FOR ALL COUNTS FOR WHICH HE HAD ATTORNEY REPRESENTATION, HE WAS FOUND "NOT GUILTY." HIS ONLY CONVICTION IS THE PORTION OF THE TRIAL THAT HE HANDLED ON HIS OWN BEHALF. - 8 - In a most inarticulate and disjointed fashion, appellant's counsel argues in the body of this assignment that the conviction for Felonious Assault is against the manifest weight and sufficiency of the evidence. The standard of review for an appeal on the grounds of manifest weight of the evidence is as follows: In determining whether the verdict is against the manifest weight of the evidence, the court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of the witnesses, and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. State v. Davis (1988), 49 Ohio App.3d 109, paragraph three of the syllabus. A reviewing court will not reverse a jury verdict where there is substantial evidence upon which a jury could reasonably conclude that all the elements of an offense have been proven beyond a reasonable doubt. State v. Eley (1978), 56 Ohio St.2d 169, paragraph one of the syllabus. This court also notes that the credibility of the witnesses is primarily the trier of fact's determination. State v. Grant (1993), 67 Ohio St.3d 465, 476; State v. DeHass (1967), 10 Ohio St.2d 231. The following was recently stated by this court relative to a sufficiency of the evidence argument: - 9 - The standard of review with regard to the sufficiency of the evidence is set forth in State v. Bridgeman (1978), 55 Ohio St.2d 261, syllabus: Pursuant to Criminal Rule 29(A), a court shall not order an entry of judgment of acquittal if the evidence is such that reasonable minds can reach different conclusions as to whether each material element of a crime has been proved beyond a reasonable doubt. See, also, State v. Apanovitch (1987), 33 Ohio St.3d 19, 23; State v. Davis (1988), 49 Ohio App.3d 109, 113. Bridgeman must be interpreted in light of the sufficiency test outlined in State v. Jenks (1991), 61 Ohio St.3d 259, paragraph two of the syllabus, in which the Ohio Supreme Court held: An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence submitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. (Jackson v. Virginia [1979], 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, followed.) Cited and followed in State v. Garner (1995), 74 Ohio St.3d 49, 60. State v. Standberry (February 15, 1996), Cuyahoga App. No. 69079, unreported, 1996 WL 65875, at 3. Based on the evidence presented by the victim, Mr. Mays (the eyewitness to the beating) and the medical evidence supporting the existence of injuries consistent with having been inflicted by - 10 - fists and a chain, the conviction for Felonious Assault was supported by the weight and sufficiency of the evidence. The second assignment of error is overruled. III THE DEFENDANT WAS DENIED A FAIR TRIAL BY AN IMPARTIAL JUDGE. THE TRIAL JUDGE, SHIRLEY STRICKLAND SAFFOLD, DEMONSTRATED HER DEPARTURE FROM FAIRNESS AND IMPARTIALITY BY HER STATEMENTS TO THE DEFENDANT BEFORE THE JURY AND AT THE SIDE BAR. Defendant-appellant argues that the court was unduly biased toward him and this alleged bias prevented a fair trial. Appellant cites to one specific passage, from the trial record's 811 pages of transcript, to demonstrate alleged bias by the trial court. The specific passage occurred during the voir dire of a potential juror. This potential juror had just told the court that he could not be fair because he had been recently shot several times during a robbery. In response to this statement by the potential juror, the trial court called a very brief side bar conference to discuss the dismissal of the potential juror. See R. 125-126. During this side bar conference the court expressed a reluctance to having the defendant come up to the bench because she, the judge, feared that defendant may attempt to slap her. The court did not have the defendant join the side bar, but did dismiss the potential juror to preclude any prejudice to the defendant's case. The appellant cites to this fear of physical assault as evidence of the court's bias toward him. - 11 - Given the totality of the circumstances surrounding this case, in particular, but not limited to, the patience the court displayed in continuing the trial date several times so that defendant could repeatedly change counsel, we conclude that bias sufficient to deprive the defendant of a fair trial was not demonstrated. Instead, we believe that the trial court displayed a remarkable degree of restraint and took pains to be impartial in her dealings with this defendant. The third assignment of error is overruled. Judgment affirmed. - 12 - It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. ANN DYKE, J., and TERRENCE O'DONNELL, J., CONCUR. JAMES D. SWEENEY CHIEF JUSTICE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App. R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .